In June 2014, the New Jersey Supreme Court, in Hitesman v. Bridgeway, Inc., affirmed the decision of a lower appellate court dismissing a claim brought by a healthcare worker under the New Jersey whistleblower law, the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (CEPA). The decision is significant because the Supreme Court clarified the role of a trial court on the issue of whether a plaintiff has sufficiently identified a rule of law or a public policy that provides the necessary foundation for a CEPA claim.
Bridgeway, which operated a nursing home, employed plaintiff as a staff nurse and later promoted him to a supervisory position. Plaintiff became concerned about what he perceived as an outbreak of infectious diseases at the nursing home and expressed his concerns to his superiors and to various government agencies. Dissatisfied with the actions taken in response to his concerns, plaintiff contacted a local television station and provided the station with a copy of his “logs” on which he had recorded information about patients at the nursing home. Bridgeway then terminated plaintiff, advising him that by providing his logs to the television station he had violated Bridgeway’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).
Plaintiff sued Bridgeway in New Jersey Superior Court, alleging that he was terminated in violation of CEPA. Specifically, plaintiff relied on N.J.S.A. 34:19-3a(1) and c(1), which prohibit retaliation against a licensed healthcare professional who either discloses to a public body or objects to a policy or practice of an employer that constitutes improper quality of patient care. He also relied on N.J.S.A. 34:19-3c(3), which prohibits retaliation against any employee who objects to a policy or practice of an employer that is incompatible with a clear mandate of public policy concerning the public health, safety or welfare. During the jury trial that followed, the trial court denied Bridgeway’s motion for involuntary dismissal at the close of plaintiff’s case. The jury concluded that Bridgeway had violated CEPA when it terminated plaintiff. In response to special interrogatories, the jury found that plaintiff had an objective, reasonable belief that Bridgeway had provided improper quality of healthcare or had violated the law or public policy and that plaintiff’s reporting of his concerns about patient care to government agencies was a determinative factor in his termination.
The Supreme Court’s Opinion
The New Jersey Supreme Court ruled that the trial court should have granted Bridgeway’s motion to dismiss made at the close of plaintiff’s case. The Court explained that, in CEPA cases, before a jury is permitted to decide whether a plaintiff had an objectively reasonable belief that his employer had engaged in conduct constituting improper patient care or which was incompatible with a clear mandate of public policy concerning public health or safety, the trial court must first determine whether the plaintiff has demonstrated a “substantial nexus” between the employer’s conduct and “the authority that provides the standard against which the employer’s conduct can be measured.” The Court ruled that in this case that “substantial nexus” was absent.
With regard to plaintiff’s claim that his employer was providing improper quality of patient care, the Court noted that CEPA defines improper quality of care as conduct that violates a law, a regulation or a professional code of ethics. Thus plaintiff was required to identify the specific law, regulation or code of ethics concerning patient care against which Bridgeway’s treatment of its patients could be measured. In this regard, the Court rejected plaintiff’s attempt to rely on the American Nursing Association’s Code of Ethics (“the ANA Code”), Bridgeway’s “Code of Conduct” in its employee manual or Bridegway’s “Statement of Patient Rights,” as none of these sources provided a governing standard as to how Bridgeway should respond to infectious diseases, which was the focus of plaintiff’s complaints to the government agencies he had contacted. Nor did these sources constitute a clear mandate of public policy concerning the public health or safety by which Bridgeway’s conduct in relation to infectious diseases could be measured. Thus plaintiff had failed to establish the required “substantial nexus” between his employer’s conduct and any authoritative source of law or public policy.
In so ruling, the Court made clear that CEPA is not concerned with mere differences of opinion between employees and their employers, which is all that plaintiff could point to in support of his CEPA claim. That plaintiff, as he maintained, may have been obligated by the ANA Code to try to improve patient care did not provide a basis for his CEPA claim because the Code did not set forth a standard by which his employer’s conduct could be measured in terms of dealing with infectious diseases at the nursing home.
Significance of the Decision
The Hitesman decision is important because it makes clear that before a CEPA claim is presented to a jury, the trial court must determine that the whistleblower-employee has identified a law, regulation or public policy that controls the employer conduct claimed by the employee to be improper. Only if the trial court makes such a determination should the jury be permitted to decide whether the employee believed that the employer’s conduct was incompatible with that law, regulation or public policy and whether that belief was reasonable. In other words, it is not for the jury to apply its own notions of offensive employer conduct, such as the alleged improper patient care in Hitesman. Thus the failure of a plaintiff to identify a law, regulation or public with a “substantial nexus” to the employer’s conduct should subject a CEPA claim to dismissal by way of summary judgment or at trial.
For answers to any questions regarding this blog or with regard to whistleblower or retaliation issues generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.